Crimes of Embezzlement and Breach of Trust

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Promulgated on April 24, 2009, Effective on July 1, 2009


Crimes of Embezzlement and Breach of Trust
Classification Adverse Affirmative
Primary
Consideration
Factor
Risk of
Recidivism,
etc.
  • Criminal History of the Same
    Offense (Imposing of Suspension
    of Sentence or More Severe
    Punishment Within Five Years; or
    More Than Three Incidents of
    Fines)
  • Deliberate Concealment of Profits
    Gained from the Offense
  • Particularly Malicious Commission
    of the Offense
  • Passive Participation Resulting
    From Outside Pressure
  • Minor Violation of Duties
  • Voluntary Surrender to Investigative
    Agencies or Cases of
    Whistle-Blowing of Corruption
Other
Factors
  • Absence of Agreement with the
    Victim
  • Cases Where the Actual Damage is
    Substantial
  • Inflicting Serious Damages to the
    Victim
  • Substantial Portion of Damages
    Reversed
  • Under Single-ownership or a
    Family-owned Business
  • Cases Where the Actual Damage is
    Slight
  • Offender Expresses Remorse and
    the Victim Opposes Punishment
General
Consideration
Factor
Risk of
Recidivism,
etc.
  • Criminal History of the Same
    Offense, More Than Two Incidents
    of Suspension of Sentence or More
    Severe Punishment
  • Repeated Crimes
  • Condemnable Motives
  • Lack of Social Ties
  • Absence of Remorse
  • Offense Committed for Basic Living
    Expenses, Hospital Expenses and
    the Like
  • Strongly-Established Social Ties
  • Expresses Sincere Remorse
  • No Criminal History of Suspension
    of Sentence or Imposing of Other
    Sentences More Severe
  • Motive for Committing Offense Can
    be Taken into Consideration
  • Cases of Old-age Offenders
Other
  • Active Participation as an
    Accomplice
  • Inflicting Multiple Victims Including
    Employees, Shareholders, or
    Creditors
  • Promise or Acceptance of Benefit
    in Exchange for the Commission of
    the Offense
  • Destroying Evidence or Attempting
    to Conceal Evidence After
    Commission of the Offense
  • Offense Committed with Purpose
    to Reinforce Control or to Secure
    Position within the Company
  • Absence of Efforts to Reverse
    Damages
  • Passive Participation As an
    Accomplice
  • Cases Where the Offender Failed to
    Consume or Retain Most of the
    Profit from the Crime
  • Significant Amount of Money
    Deposited, Portion of Damage
    Reversed, Genuine Efforts to
    Reverse Harm
  • Offense Caused Relatively Small
    Actualized Damages
  • Offense Committed for the Sole
    Benefit of the Company
  • Cases of Physically-ill Offenders
  • Cases where the Arrest of the
    Offender would Cause Severe
    Hardship to the Offender’s
    Dependent Family Member
  • Major Shareholder of the Affected
    Company
  • In cases where the consideration factors for suspension of sentence of sentencing and the sentencing factors are identical, refer to the definitions set forth in the Definition of Sentencing Factors.
  • Determining Criminal History
    • Prior criminal history is calculated as follows: In cases involving suspension of sentence, calculate from the date the defendant’s suspension of sentence was affirmed up to the date of the commission of the offense. In cases imposing imprisonment, calculate from the final date of the completion of the sentence up to the date of the commission of the offense.
  • Cases where the actual damage is substantial
    • This means cases where the offense does not constitute as Inflicting Serious Harm to the Victim but the total damage unrecovered amounts to more than 300 million won.
    • However, for suspension of sentence, this means cases where the total damage unrecovered amounts to more than 500 million won.
  • Cases where the actual damage is slight
    • This means cases where the total damage unrecovered amounts to less than 20 million won.
    • However, for imposing imprisonment, this means cases where the total damage unrecovered amounts to less than 50 million won.
  • For cases where the imposing penalty is imprisonment, in deciding whether the suspension of sentence is appropriate, the primary consideration factor should be taken into account with greater importance than the general consideration factors. This is further specified as follows:
    1. ①  In cases where only two or more primary affirmative factors exist or when primary affirmative factors outnumber the major adverse factor by two or more, suspension of sentence is recommended.
    2. ②  In cases where two or more primary adverse factors exist or when primary adverse factors outnumber the primary affirmative factor by two or more, imprisonment is recommended.
    3. ③  In cases other than ①, ②, or even if cases of ①, ②, if the difference between the number of general adverse(affirmative) factors and general affirmative (adverse) factors is greater than that of adverse and affirmative factors of the primary consideration, then the judge shall decide whether to suspend the sentencing after assessing and comprehensively taking into account the factors listed under the suspension of sentence section.

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